State v. Evans, 48092
| Decision Date | 09 October 1984 |
| Docket Number | No. 48092,48092 |
| Citation | 679 S.W.2d 434 |
| Parties | STATE of Missouri, Appellant, v. James O. EVANS, Jr., Respondent. |
| Court | Missouri Court of Appeals |
Donald J. Hager, Public Defender, Farmington, for appellant.
John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for respondent.
The state appeals from the trial court's order granting defendant's motion to dismiss the charge of forgery, (§ 570.090 RSMo 1978) based on double jeopardy.
The forgery trial of defendant James O. Evans, Jr. began on October 25, 1983. After the jury was selected and empaneled, the trial court held its pretrial conference. During the conference the state requested an order prohibiting the defense counsel from referring to a prior forgery charge against the defendant which had been nolle prossed. The court reserved ruling on the state's request until the pertinent state's evidence was adduced at trial.
The state then made a motion in limine asking for an order preventing the defense counsel from making any reference in his opening statement to the credibility of the state's identifying witness. The state's witness identified the defendant by using the "mug-shots" taken of him for his prior forgery charge which had been nolle prossed. On his "mug-shot" appeared the word "forgery" to which the defense counsel attributes the state's successful identification of his client in this forgery charge. The state claims that the identifying witness was not allowed to see this word on the photograph when the identification was made. After a lengthy discussion, the court granted the state's motion. The defense counsel attempted to have the ruling clarified which the court endeavored to do. Subsequently, during the defendant's opening statement a reference was made connecting the "mug-shot" to the nolle prossed, forgery charge. The state objected contending that the Court's order was violated and requested a mistrial. The trial court granted the motion after another lengthy discussion whereby the defense counsel vehemently contended that he made a good faith effort to comply with his understanding of the court's order in limine.
Defense counsel filed a motion to dismiss based on double jeopardy. On November 21, 1983, the trial court conducted a hearing on the motion. As a result, the court found that its order in limine should have been more specific, and in effect, found that the defense counsel had acted in good faith and had not consented to the state's motion for a mistrial. After making these findings, the trial court granted the defendant's motion to dismiss based on double jeopardy. The state appeals to which the defendant responds with another motion to dismiss contending that the state has no right to appeal.
Defendant's motion which had been taken with the case raises the issue of whether statutory authority exists for the state's appeal. It has long been the law in Missouri that the state cannot appeal a judgment for the accused, whether it is upon a verdict of acquittal or upon the determination of a question of law, unless a right of appeal is unequivocally conferred by statute. State v. Craig, 223 Mo. 201, 122 S.W. 1006 (1909); State v. Little River Drainage Dist., 490 S.W.2d 675, 676 (Mo.App.1973). The relevant statutes permitting state appeals in a criminal prosecution are § 547.200 RSMo Cum.Supp.1983 and § 547.210 RSMo 1978. This latter section permits appeals in those instances when any indictment or information is adjudged insufficient upon demurrer or exception, or where judgment is arrested or set aside. See also Rule 30.02. Section 547.200.1 permits interlocutory appeals in the cases of any order or judgment quashing an arrest warrant, suppressing evidence, or suppressing a confession or admission. An appeal from an order granting a motion to dismiss based on double jeopardy does not fall within any of these enumerated instances. However, it may be argued that § 547.200.2 contains language conferring the right of an appeal to the state to wit:
The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in Section 547.210 and in all other criminal cases except in those cases where the possible outcome...
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State v. Coor, 14888
...law, unless a right of appeal is unequivocally conferred by statute. State v. Craig, 223 Mo. 201, 122 S.W. 1006 (1909); State v. Evans, 679 S.W.2d 434, 435 (Mo.App.1984); State v. Little River Drainage District, 490 S.W.2d 675, 676 (Mo.App.1973). Section 547.210, which has been on the books......
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State v. Henderson
...statute does not confer a right of appeal on the state under these facts. In support of this argument, the defendant cites State v. Evans, 679 S.W.2d 434 (Mo.App.1984). In Evans, the trial court granted a mistrial at the request of the state and then sustained a motion to dismiss the charge......
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State v. Casaretto
...where the right is explicitly conferred by statute and where no double jeopardy can result. RSMo § 547.200.2 (1986); State v. Evans, 679 S.W.2d 434, 435 (Mo.App., E.D.1984). The United States Supreme Court has rejected the view that trial court reference to matters outside the record on a m......
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...on constitutional speedy trial grounds after the state failed to provide Brown's pretrial expenses. Brown relies on State v. Evans, 679 S.W.2d 434 (Mo.App.1984), for the proposition the state cannot appeal a judgment for the accused based on the determination of a question of law unless a r......